AI Structured Summary
Not yet generated for this judgment
Judgment
Raghvendra Singh Chauhan, CJ
The revisionist has challenged the order, dated 09.09.2021, passed by the learned Commercial Tax Tribunal ('the Tribunal' for short), in Second Appeal No. 9 of 2021, whereby the learned Tribunal has upheld the order, dated 24.07.2021 passed by the learned Joint Commissioner (Appeals), State Tax, Dehradun, Uttarakhand, in First Appeal No. 516 of 2021, wherein the learned Joint Commissioner had stayed 60% of the amount due, but had directed the revisionist to deposit 40% of the said amount.
Briefly, the facts of the case are that the revisionist was assessed under Section 9 (4) of the Uttarakhand Tax on Entry of Goods Into Local Areas Act, 2008 by assessment order dated 14.12.2020; the Assessing Officer had imposed an entry tax of Rs. 2,85,59,865/- for the year 2016-17, and after adjustment of refundable amount of tax under the Value Added Tax Act, created a demand for a sum of Rs. 1,11,25,279/-. The revisionist had declared purchase of sugar value at the sum of Rs. 57,11,97,296/-. Aggrieved by the assessment order, the revisionist had preferred a First Appeal, and had also moved an application for stay of the demand amount.
Meanwhile, the revisionist had also challenged the constitutional validity of the Uttarakhand Tax on Entry of Goods Into Local Areas Act, 2008 before this Court. The said petition is still pending before this Court.
According to the revisionist, in his interim application for stay moved before the Joint Commissioner, it had prayed that 100% of the demand amount should be stayed. However, by order dated 24.07.2021, the learned Joint Commissioner had stayed only 60% of the demand amount, and directed the revisionist to deposit only 40% of the demand amount. Aggrieved by the said order, the revisionist had approached the learned Tribunal by way of filing a second appeal under Section 53 of the Uttarakhand Value Added Tax Act, 2005 ('the Act' for short). By the impugned order dated 09.09.2021, the learned Tribunal has upheld the order passed by the learned Joint Commissioner (Appeal). Hence, the present revision before this Court.
Mr. Jitendra Chaudhary, the learned counsel for the revisionist, has pleaded as under:-
Firstly since the constitutional validity of the Uttarakhand Tax on Entry of Goods Into Local Areas Act, 2008 is subjudice before this High Court, the demand should have been stayed 100% both by the learned Joint Commissioner and by the learned Tribunal.
Secondly, the learned Tribunal has erred in relying on Section 53(8) of the Act, for Section 53(8) of the Act comes into effect only at the time of admitting the appeal.
Lastly, due to the Covid pandemic, the revisionist has faced financial crisis. Therefore, the revisionist is not in a position to deposit 40% of the demand amount. Therefore, the impugned order deserves to be set aside by this Court.
Heard the learned counsel for the revisionist.
Admittedly, even when the constitutional validity of the Act has been challenged before this Court, this Court has not granted any stay on the recovery of the assessed amount. Therefore, merely because constitutional validity is under challenge, it will not prevent the Department from assessing and from passing the assessment order. Moreover, it will not prevent the learned Joint Commissioner from directing the revisionist to deposit at least 40% of the demand amount. In fact, the law bestows a discretionary power on the Joint Commissioner to decide as to how much of the demand amount should be stayed by him. Since it is the discretionary power, which has been validly exercised, the learned Tribunal was justified in upholding the order passed by the learned Joint Commissioner.
The learned counsel for the revisionist is equally unjustified in claiming that the learned Tribunal could not have relied on Section 53(8) of the Act. The issue before the learned Tribunal was whether the Joint Commissioner was legally justified in staying merely 60% of the demand amount, and in directing the revisionist to deposit 40% of the demand amount or not? Therefore, obviously, when the revisionist filed the Second Appeal, Section 53 of the Act would have come into effect. Therefore, even the second contention raised by the learned counsel is unsustainable.
Admittedly, the amount to be deposited by the revisionist is around Rs. 50 Lacs. The revisionist possibly cannot claim that it on the brink of liquidation, or that it does not have the said amount within its finances. Therefore, even the third contention being raised by the learned counsel is an attempt to seek misplaced sympathy of this Court.
For the reasons stated above, this Court does not find any merit in the present revision. It is, hereby, dismissed.
In sequel thereto, pending application, if any, stands disposed of.
No order as to costs.